Constitutional Concerns Sink Charter School Board

House bill strips panel of policymaking powers leaving State Board of Education in charge

RALEIGH — Amid pushback from charter schools and concerns about violations of constitutional separation of powers, a Senate bill creating an independent public charter school board was revised Tuesday to make the panel advisory in nature.

“The State Board of Education and governor were all in accord on that one, that they thought we needed a constitutional divide there to make sure that we didn’t really cross over onto their constitutional grounds,” state Sen. Jerry Tillman, R-Randolph, said after the House Education Committee passed Senate Bill 337.

The bill, which the Senate passed along party line votes, now goes to the House Finance Committee, and to the Appropriations Committee after that. If it passes the full House, it would return to the Senate.

The original bill called for the charter school board to operate independently from the State Board of Education, and required the state board to garner a three-fourths majority vote before it could reject any actions from the charter school board.

Under the revised bill, “The State Board of Education has total authority to overrule any recommendation” from the charter advisory board, Tillman said.

Recommendations are “all they may make in policy or procedure or anything else,” he said of the advisory board. The State Board of Education “has total power to overrule anything that they may suggest.”

Even before the bill reached the House Education Committee, it was facing challenges over its constitutionality. “I don’t know of any effort in the history of the state, certainly not since the current constitution was written, to try to usurp the State Board of Education’s authority like this,” said Jeanette Doran, executive director and general counsel of the North Carolina Institute for Constitutional Law, earlier in June.

Tillman said Senate leadership backs the switch to advisory status, and he is confident the changes and several amendments made in the House Education Committee will meet with concurrence, with one possible exception, should the bill go back to the Senate.

“The only little part that I quibble with is that the governor’s office would name the chair and vice chair” of the charter advisory board, Tillman said. “It’s always better for an advisory committee to pick their own, in my opinion, but that’s something we can work with.”

As it stands, the bill would establish an 11-member advisory panel. The governor, House speaker and Senate president pro tem each would appoint three members. The lieutenant governor and state treasurer would be voting members. The state superintendent of education would be a nonvoting secretary to the board.

Tillman said he doubts a constitutional amendment would be pursued in the future to create an independent charter school board.

“We’re going to see if it works,” he said of the proposed structure, particularly since newly appointed members of the State Board of Education appear to be friendlier to charter schools.

“We had an earlier situation where it wasn’t working. The state board was blocking some of the charter initiatives and we felt like there was an adversarial relationship there,” Tillman said. “That’s why we went with a charter board. I believe we got a better situation.”

Even so, the revised measure did not win over some committee Democrats. “The advisory board that we have in place works, and what this is doing now is strengthening the division between the traditional public schools and the charter schools,” said Rep. Paul Luebke, D-Durham. “I see no need for a separate board to be set up.”

A significant concession made to charter school advocates was the removal from the bill of an application fee for new charter schools. A number of technical amendments also were adopted clarifying language and directing the flow of money from a school district to a charter school, and from a charter school to a school district as students migrate back and forth.

“A lot of [school districts] and public schools resent charters in that it’s taking away a lot of their kids. They see this as an erosion of their public schools,” Tillman said. “And I see it as a marketplace telling you go to the best place you can go in education and the money follows the kids, so if you have the kids you get the money wherever you are.”

Rep. Paul Tine, D-Dare, raised objections to the bill because, he said, it seems like charter schools are moving more and more into a separate system.

“It’s not created to clone the public schools otherwise we wouldn’t need the charter schools,” Tillman said.

Matt Ellinwood of the North Carolina Justice Center spoke to the committee in opposition to the bill.

Among concerns he cited was the lowered requirements for having certified teachers in charter school classrooms. He cited a recent study from Duke University that students “suffered significant learning losses” when taught by uncertified teachers.

“I object to this objection about teacher certification,” said Rep. Larry Pittman, R-Cabarrus.

“You know a lot of the impetus for having charter schools is because some parents who have the real responsibility and authority for their children’s education are not buying what traditional public schools are selling,” Pittman said.

“I know in the case of my family, the public schools were doing a lousy job of teaching our kids” when he and his wife pulled their children from traditional public schools and homeschooled them instead, Pittman said. They had one son in third grade who was reading at a first-grade level.

“Neither my wife nor I were certified teachers,” he said, yet the education their children got at home prepared them to make the dean’s list in college. He believes that competition between traditional and charter schools “will help the traditional public schools improve what they’re doing.”

Dan Way (@danway_carolina) is an associate editor of Carolina Journal.